UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


UNITED FOOD LOC #400

v.

NLRB


98-1422a

D.C. Cir. 2000


*	*	*


Garland, Circuit Judge: The United Food and Commercial  Workers
International Union, Local 400, AFL-CIO ("the  Union") filed unfair
labor practice charges with the National  Labor Relations Board in
connection with an organizing drive  at Farm Fresh grocery stores in
the Tidewater area of  Virginia.1 The Board determined that Farm Fresh
had  committed a number of unfair labor practices, and the compa- ny
has not petitioned for review of that determination. The  Board
declined, however, to find unfair labor practices in two 
circumstances as to which the Union has petitioned for re- view: the
ejection of nonemployee organizers from the snack  bar at one Farm
Fresh store, and the exclusion of nonemploy- ee organizers from the
sidewalk in front of four other stores.  We consider those matters


I


We begin with the snack bar incident, which itself began  with a
sidewalk incident. Farm Fresh operates a grocery  store on Princess
Anne Road in Virginia Beach, Virginia.  The store operates under a
lease that covers both the build-




__________

n 1 Farm Fresh operated the stores under various names including  Farm
Fresh, Nick's, and Food Carnival. Farm Fresh was subse- quently
acquired by FF Acquisition, L.L.C. For ease of reference  we will
refer to the employer and all of its stores as "Farm Fresh."


ing and its adjacent sidewalk. On May 1, 1990, James Green  and Dudley
Saunders, Union organizers not employed by  Farm Fresh, were outside
the Princess Anne Road store  soliciting employee support. They stood
approximately 30  feet from the entrance. The store's manager, Nat
Harlow,  approached the two organizers and instructed them to move  50
feet away in accordance with a Farm Fresh policy barring  all
solicitation within 50 feet of store entrances. The organiz- ers
refused to move, and Harlow summoned the police. The  police told the
organizers that if they did not move, Harlow  could obtain warrants
for their arrest for trespass. When  Harlow left to obtain the
warrants, the organizers departed.  A magistrate issued trespass


On May 3, 1990, an attorney for Farm Fresh sent the  Union a letter
"regarding the recent activities of organizers  for UFCW Local 400 at
stores owned and operated by Farm  Fresh." The letter advised that,
under company policy, "[a]ll  outside solicitors must remain no closer
than 50 feet from  public entrances to the stores," and that "[t]he
snackbar or  cafeteria facilities may be used only in ways consistent
with  their use by members of the public generally." The letter  also
specifically noted that warrants accusing Saunders and  Green "of
trespassing have been issued by a magistrate for  the City of Virginia
Beach," and requested "that you advise  these men that if they again
appear on the property of the  store on Princess Anne Road they will
be considered tres- passers and will be treated as such." J.A. at


On May 14, Green and Saunders returned to the Princess  Anne Road store
to eat lunch at its snack bar. Store  manager Harlow told them "that
in light of the pending  warrants issued on May 2, he did not want
them anywhere in  the store until the matter was resolved." Farm
Fresh, Inc.,  326 N.L.R.B. No. 81, at 2 (1998). Harlow permitted the 
organizers to finish their meal, and thereafter they departed.  The
Union subsequently filed charges alleging that Farm 




__________

n 2 The authority of the Princess Anne Road store to exclude the 
organizers from its sidewalk has not been challenged in this court. 
See infra Part II.


Fresh had violated section 8(a)(1) of the National Labor  Relations Act
("NLRA"), 29 U.S.C. s 158(a)(1), by ordering  the organizers to leave
the snack bar.3


At the time of the incidents in question, the right of access  by
nonemployee union organizers to employers' public snack  bars was
governed by the NLRB's opinion in Montgomery  Ward & Co., 288 N.L.R.B.
126 (1988), rev'd on other grounds,  904 F.2d 1156 (7th Cir. 1990). In
Montgomery Ward, the  Board held that "solicitation in restaurants
cannot be prohib- ited when ... the conduct of the nonemployee
organizer is  consistent with the conduct of other patrons of the
restau- rant." Id. at 127.4 Before the Union's case against Farm 
Fresh was decided, however, the Supreme Court issued its  decision in
Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992).  Lechmere held that an
employer is not required to open its  property to nonemployee
organizers unless the union can  show that it has no other reasonable
means of communicating  with the employees, or that the employer's
access rules  discriminate against union solicitation. See id. at 535;
see  also Lucile Salter Packard Children's Hosp. v. NLRB, 97  F.3d


In the instant case, the NLRB found that Farm Fresh had  excluded
Saunders and Green from the snack bar on the basis  of an
across-the-board policy banning solicitation by any  outsider at the
facility. The Board then held that although  such a no-solicitation
ban would have been unlawful under 




__________

n 3 Section 7 of the NLRA, 29 U.S.C. s 157, guarantees employees  "the
right to self-organization, to form, join, or assist labor organi-
zations, ... and to engage in other concerted activities for the 
purpose of collective bargaining or other mutual aid or protection." 
Section 8(a)(1) makes it an unfair labor practice "to interfere with, 
restrain, or coerce employees in the exercise of the rights guaran-
teed" by section 7. Id. s 158(a)(1).


4 See Farm Fresh, Inc., 301 N.L.R.B. 907, 928 (1991); Dunes  Hotel &
Country Club, 284 N.L.R.B. 871 (1987); Harold's Club, 267  N.L.R.B.
1167, 1167 (1983), enforced, 758 F.2d 1322 (9th Cir. 1985);  Marshall
Field & Co., 98 N.L.R.B. 88, 94 (1952), enforced as  modified, 200
F.2d 375 (7th Cir. 1952).


Montgomery Ward, that decision could not survive Lechmere.  Board
Members Fox and Liebman dissented. They argued,  first, that the
viability of Montgomery Ward was not at issue  in this case because
the union organizers had not been  ejected on the basis of a
no-solicitation policy, but rather  because there were outstanding
trespass warrants against  them. Second, they argued that Montgomery
Ward did  survive Lechmere because it was grounded in the anti-
discrimination exception to the employer's right to exclude.  Agreeing
with the dissenters as to the first point, we have no  occasion to


This court must uphold a decision of the Board with respect  to a
question of fact "if it is supported by substantial evidence  on the
record considered as a whole." 29 U.S.C. s 160(e);  see Universal
Camera Corp. v. NLRB, 340 U.S. 474, 477, 488  (1951). In its eagerness
to address the Lechmere issue,  however, the Board's majority conjured
a factual situation as  to which there is no substantial evidence.
Indeed, we can  find no evidence at all that Farm Fresh ejected Green
and  Saunders on the basis of a company policy barring solicitation 
in the snack bar. Rather, all of the evidence, including Farm  Fresh's
own frank admission, indicates that Green and Saun- ders were excluded
simply because of the outstanding tres- pass warrants. See Farm Fresh
Br. at 12 n.5 ("[T]he two  organizers excluded from the snackbar were
asked to leave  because of outstanding trespass warrants issued by the
City  of Virginia Beach.") (emphasis added).


When manager Harlow confronted Green and Saunders at  the snack bar, he
gave one and only one explanation for  asking them to leave: the
existence of the trespass warrants.  See J.A. at 660 (testimony of
Harlow); id. at 578 (testimony  of Green); id. at 636 (testimony of
Saunders). That explana- tion is consistent with Farm Fresh's May 3
letter, which  specifically "requested that you advise these men that
if they  again appear on the property of the store on Princess Anne 
Road they will be considered trespassers and will be treated  as
such." J.A. at 138. It is also consistent with the absence  of any
evidence that Green and Saunders were soliciting at 


the snack bar on May 14; the only evidence is that they were  eating
lunch.


Nor is there any support for the proposition that Farm  Fresh had a
no-solicitation policy with respect to the snack  bar. To the
contrary, in their brief before the Board, Farm  Fresh stated that it
"permitted Union organizers to engage in  lawful solicitation in the
snack bars which Farm Fresh oper- ated in many of the stores in
question." Farm Fresh, Inc.,  326 N.L.R.B. No. 81, at 10 (Members Fox
and Liebman  dissenting) (quoting Farm Fresh Br. in Support of Cross 
Exceptions, at 7). This is confirmed by specific evidence that  Union
organizers had previously engaged in solicitation in  Farm Fresh's
snack bars without interference from the com- pany. See id. at 10 n.4.
Indeed, Green and Saunders had  themselves frequently solicited
employees at the Princess  Anne Road snack bar prior to May 3. See id.
As the  Board's Administrative Law Judge (ALJ) found, the ejection  of
Saunders and Green was "an exception to [Farm Fresh's]  general 'hands
off' approach to nondisruptive organizational  conduct on the part of
Union representatives inside the  stores." Id. at 22 (ALJ Decision).


The NLRB did not dispute this evidence, acknowledging  that Farm
Fresh's policy may previously have been "more  lenient." Farm Fresh,
Inc., 326 N.L.R.B. No. 81, at 3. The  Board concluded, however, that
whatever Farm Fresh's earli- er policy had been, the May 3 letter made
clear it had a no- solicitation policy as of that date. In reaching
this conclusion,  the Board relied on two paragraphs of the letter.
Paragraph  1 stated that all outside solicitors must remain "no closer
than  50 feet from public entrances." Paragraph 3 stated that  snack
bars could be used "only in ways consistent with their  use by members
of the public generally." The Board con- cluded that the first
paragraph controlled, and was intended  to ban solicitation not just
from the portion of the sidewalk  that was within 50 feet of the
entrance, but from the entire  store--inside and out.


The Board reached this conclusion notwithstanding that  paragraph 3 did
not state that solicitation was banned in the 


snack bar, whether by organizers or "the public generally."  The
weakness of the Board's finding is further illuminated by  the
employer's own rejection of the intent the Board attrib- uted to it.
At oral argument, counsel for intervener Farm  Fresh candidly stated
that the May 3 letter did not represent  a no-solicitation policy, but
rather was intended to be consis- tent with Montgomery Ward--which
required employers to  permit snack bar solicitation as long as
organizers behaved in  a manner consistent with that of the public in
general. That  intent is hardly surprising. At the time the letter was
 written, Montgomery Ward was the governing law and para- graph 3
mirrors its language. Compare Letter p 3 (J.A. at  137) (stating that
snack bar "may be used only in ways  consistent with their use by
members of the public general- ly"), with Montgomery Ward, 288
N.L.R.B. at 127 (holding  that exclusion from snack bar is improper
when "the conduct  of the nonemployee organizer is consistent with the
conduct  of other patrons of the restaurant").


The NLRB rejected the unfair labor practice charge  against Farm Fresh
based on its factual finding that the  company expelled the two
organizers because they were  violating the company's no-solicitation
policy, and based on its  legal conclusion that such a policy was
lawful. Because there  is no substantial evidence to support the
Board's factual  finding, its ultimate disposition cannot stand.
Hence, we  have no occasion to consider whether the Board's legal con-
clusion--that employers may ban all solicitation from their  public
snack bars--is correct. Nor do we have reason to  consider whether the
actual ground upon which Farm Fresh  ejected the organizers--the
existence of outstanding trespass  warrants--would have sufficed to
support dismissal of the  unfair labor practice charge. Because this
court "cannot  sustain agency action on grounds other than those
adopted by  the agency in the administrative proceedings," Macmillan 
Pub. Co. v. NLRB, 194 F.3d 165, 168 (D.C. Cir. 1999) (citing  SEC v.
Chenery Corp., 318 U.S. 80, 94 (1943)), we reverse the  Board's
decision and remand the case to the agency for  further


II


The second issue before us concerns Farm Fresh's policy of  barring
solicitation on the sidewalks in front of nine of its  stores. All
nine stores were situated in strip malls with  common areas and
co-tenants. Each store was operated  under lease, with Farm Fresh
possessing varying rights  and/or obligations with respect to the
sidewalks. Notwith- standing the variances in the leases, Farm Fresh
enforced a  common policy at each store: No solicitation of any kind
was  permitted within 50 feet of the public entrance. At each of  the
nine stores involved, nonemployee organizers were in- formed of the
policy and, when they refused to comply, were  threatened with legal
action or arrested. The Union filed  unfair labor practice charges
against each store, contending  that Farm Fresh violated NLRA s
8(a)(1) by enforcing the  policy on sidewalks as to which they lacked
sufficient proper- ty interests to exclude nonemployee organizers.


All parties agree that the lawfulness of the employer's  exclusion of
nonemployee union representatives in this situa- tion is governed by
the NLRB's decision in Indio Grocery  Outlet, 323 N.L.R.B. 1138, 1141
(1997), enforced, 187 F.3d 108  (9th Cir. 1999). Indio reaffirmed that
for exclusion to be  lawful, "there is a threshold burden on the
[employer] to  establish that it had, at the time it expelled the
Union  representatives, an interest which entitled it to exclude indi-
viduals from the property." Indio, 323 N.L.R.B. at 1141  (internal
quotation omitted).5 To determine whether the  employer had such a
property interest, the Board "look[s] to  the law that created and
defined the [employer's] property  interest, which is state, rather
than Federal, law." Id.; see 




__________

n 5 See O'Neil's Markets v. United Food and Commercial Workers  Union,
95 F.3d 733 (8th Cir. 1996), enforcing sub nom. Food for  Less, 318
N.L.R.B. 646, 649-50 (1995); Johnson & Hardin Co., 305  N.L.R.B. 690,
691, 695 (1991), enforced in pertinent part, 49 F.3d  237 (6th Cir.
1995); Polly Drummond Thriftway Inc., 292 N.L.R.B.  331, 332 (1989),
enforced, 882 F.2d 512 (3rd Cir. 1989); Barkus  Bakery, 282 N.L.R.B.
351, 354 (1986), enforced, 833 F.2d 306 (3rd  Cir. 1987).


also Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 217 n.21  (1994)
("The right of employers to exclude union organizers  from their
private property emanates from state common  law...."). If the
employer is unable to meet the burden of  demonstrating the requisite
property interest, its exclusion of  union agents from the area
constitutes a violation of section  8(a)(1). See Indio, 323 N.L.R.B.
at 1141; cases cited supra  note 5.


Applying this test, the ALJ found that Farm Fresh had not  committed
unfair labor practices at two of the stores, those at  Princess Anne
Road (discussed in Part I above) and High  Street, because the company
possessed sufficient property  interests in the appurtenant sidewalks
to exclude the organiz- ers. In both cases, Farm Fresh had expressly
leased both  the stores and the sidewalks at issue. See Farm Fresh,
Inc.,  326 N.L.R.B. No. 81, at 16, 21 (ALJ Decision). The NLRB 
affirmed the ALJ as to these stores, and the Union has not 


As for the remaining stores, the ALJ concluded that Farm  Fresh lacked
sufficient property interests to exclude the  organizers and therefore
had committed unfair labor prac- tices by ejecting them. Farm Fresh
appealed to the Board,  which affirmed the ALJ with respect to three
of the stores.  In each of those three cases, the sidewalks were not
leased to  Farm Fresh but rather remained in the exclusive control of 
the landlord. Nor did those leases impose upon Farm Fresh  any
obligations with respect to maintenance of the sidewalks.  The Board
concluded that the company had no right to eject  the organizers from
the sidewalks of those three stores, and  that the ejections therefore
constituted unfair labor practices.  Farm Fresh has not sought review
of those determinations.


This leaves the four stores that are the subject of this case:  the
Colonial Avenue, Shore Drive, Merrimack Trail, and  Victory Boulevard
stores. Although the lease agreements for  these stores do not--with
one possible exception noted be- low--lease the sidewalks to Farm
Fresh, they do impose upon  the tenant company an obligation to clean
and maintain the  sidewalks. The ALJ concluded that this obligation
was insuf-


ficient to entitle Farm Fresh to expel the organizers from the 
property. The Board disagreed, concluding that the mainte- nance
obligations were sufficient to entitle Farm Fresh to  invoke the
Virginia trespass statute. The Union petitions for  review.


As the NLRB held in Indio, whether an employer has a  sufficient
property interest to exclude Union organizers is a  question of state
property law: in this case, the law of the  Commonwealth of Virginia.
As the NLRB has no special  expertise in interpreting Virginia law, we
review the question  de novo. See Cellwave Telephone Services L.P. v.
FCC, 30  F.3d 1533, 1537 (D.C. Cir. 1994) (reviewing de novo FCC's 
interpretation of state law); see also NLRB v. Better Build- ing
Supply Corp., 837 F.2d 377, 378 (9th Cir. 1988) (giving no  deference
to Board's interpretation of bankruptcy law).


The Virginia trespass statute upon which the Board relied  states as
follows:


If any person without authority of law goes upon or  remains upon the
lands, buildings or premises of another,  or any portion or area
thereof, after having been forbid- den to do so, either orally or in
writing, by the owner,  lessee, custodian or other person lawfully in
charge  thereof ... he shall be guilty of a Class 1 misdemeanor.


Va. Code Ann. s 18.2-119 (Michie 1996) (emphasis added).  Under the
statute, it is clear that the owner or lessee of the  sidewalks had
the authority to exclude the organizers. But  there is no dispute
(with one possible exception) that Farm  Fresh was not the owner or
lessee. The NLRB relied  instead on the statutory language authorizing
a "custodian or  other person lawfully in charge" to bar entry. The
Board  concluded that the provisions of the lease agreements requir-
ing Farm Fresh to keep the sidewalks clean were sufficient to  place
the company within those categories. We disagree.


The Colonial Avenue lease agreement is typical. In the  relevant
paragraph, Farm Fresh agreed to "keep the demised  premises, entryways
and sidewalks adjacent to said premises  clean and free from
obstruction, rubbish, dirt, snow and ice." 


Lease p 14 (J.A. at 381-82). Although this provision may give  Farm
Fresh the power to remove "rubbish, dirt, snow and  ice," Union
organizers do not fall within those categories.  Nor may they be
categorized as "obstruction[s]"--there is no  evidence that they
obstructed the entrances in any way.


It is true that the leases' maintenance provisions might  permit Farm
Fresh to be characterized as a "custodian" in  the sense of "janitor,"
but there is no indication that Virginia  law permits janitors to file
trespass actions against citizens  who stand on Virginia sidewalks.
Rather, the canon of  ejusdem generis ("of the same kind or class")
counsels that  we read the phrase "custodian or other person lawfully
in  charge" as indicating that "custodian" means a person who is  "in
charge," or is "in control." See Hall v. Commonwealth,  49 S.E.2d 369,
371 (Va. 1948) ("The only purpose of this law is  to protect the
rights of the owners or those in lawful control  of private
property."). And there is no evidence in the leases  that Farm Fresh
was intended to have control over the  appurtenant sidewalks. To the
contrary, each lease makes  clear that with respect to the sidewalks,
Farm Fresh has  nothing more than a right to "the use in common with"
the  other co-tenants. J.A. at 373 p 2 (Colonial Ave.).6 Indeed,  with
respect to at least one of the stores, Merrimack Trail, it  is quite
clear that Farm Fresh does not have control, as the  lease expressly
states that the "sidewalks ... shall be at all  times subject to the
exclusive control and management of  landlord." J.A. at 523.7 Farm
Fresh's mere shared right of 




__________

n 6 See J.A. at 523 (Merrimack Trail) (granting use of the sidewalks 
in common with other tenants of landlord in the shopping center); 
J.A. at 196 (Shore Drive) ("All portions of the shopping center land 
... not covered by buildings, shall be common area equally avail- able
and shared in common by all tenants of the shopping center,  their
employees, agents, customers and invitees.").


7 NLRB counsel contend that we must ignore this paragraph of  the
Merrimack Trail lease because the Union did not specifically  call it
to the Board's attention. But the entire lease was in  evidence, the
Board expressly relied on its provisions, and the  Union argued that
taking the lease as a whole Farm Fresh lacked  the right to control
the sidewalk. See J.A. at 690-91 (Union Br. in 


use strongly suggests that it lacks the power to exclude those  it
dislikes from the shopping center's common sidewalks.  Indeed, to
permit Farm Fresh to eject Union organizers  would be to permit it to
expel Salvation Army bell-ringers,8 a  power we are loathe to assume a
shopping center landlord  intended to convey to its tenants.


The Board based its contrary conclusion on its view that,  under the
statute, "it is clear that the right to invoke the  trespass statute
is not restricted to the owner or lessee of the  property; rather it
extends broadly to a 'custodian' or 'person  lawfully in charge' of
the property." Farm Fresh, Inc., 326  N.L.R.B. No. 81, at 5. This is
not analysis; it is mere  restatement of the statutory language. Yes,
the statute does  not restrict its scope to owners or lessees; it also
extends to  custodians and others lawfully in charge. However, that
fact  does not cast light on the definition of the latter category, or
 justify the Board's description of the statute as "broad" and 
"expansive." Id. The NLRB cited only a single Virginia  case in
support of its position, Hall v. Commonwealth, 49  S.E.2d 369 (Va.
1948). But Hall says nothing more than that  "[t]he only purpose of
this law is to protect the rights of the  owners or those in lawful
control of private property." Id. at  371. If anything, this quotation
supports the conclusion,  drawn above, that the statutory term
"custodian" was simply  intended as a synonym for one "in lawful
control." Nor is the  analysis advanced by learning that,
unsurprisingly, the stat- ute's "underlying purpose" is "protecting
private property  rights." Farm Fresh, Inc., 326 N.L.R.B. No. 81, at
5. The  question at issue is whether Farm Fresh has a property right




__________

n Answer to Farm Fresh's Exceptions). That is sufficient to take the 
issue out of NLRA s 10(e), 29 U.S.C. s 160(e), which precludes a 
reviewing court from considering an objection that has not been  urged
before the Board.


8In fact, if Farm Fresh were permitted to exclude the organizers,  it
could be required to exclude other solicitors, including in some 
circumstances charitable solicitors, in order to avoid a charge of 
anti-union discrimination. See Lucile Salter Packard Children's  Hosp.
v. NLRB, 97 F.3d 583, 587 & n.4 (D.C. Cir. 1996).


that gives it the power to exclude others from the premises 


In its intervenor brief, Farm Fresh offers another ground  for
sustaining the Board's decision. Although it is unable to  find a
Virginia case on point, it urges us to adopt the District  of Columbia
Court of Appeals' interpretation of that jurisdic- tion's unlawful
entry statute. In Woll v. United States, 570  A.2d 819 (D.C. 1990),
the Court of Appeals concluded that a  clinic located in an office
building could invoke the statute to  eject protesters, who were
blocking patients' access, from an  interior corridor shared in common
with the landlord and  other tenants. Farm Fresh argues that the
Virginia statute  should be read the same way, and hence should permit
it to  expel the Union organizers from the sidewalks it shares with 
other shopping center tenants.


We do expect that Virginia courts would recognize some- thing akin to
an implied easement of necessity on behalf of a  lessee to ensure
access to its leased property over the proper- ty of the landlord.9
The existence of such an easement may  be established if its advocate
can show, inter alia, that "the  easement is reasonably necessary for
the enjoyment of the  parcel" and that "other reasonable means of
ingress and  egress are lacking." Cartensen v. Chrisland Corp., 442 
S.E.2d 660, 663 (Va. 1994); see Russakoff v. Scruggs, 400  S.E.2d 529,
532 (Va. 1991). This requires "more than simple  convenience," and
"generally will depend upon the circum- stances of the particular
case." Russakoff, 400 S.E.2d at 533  (internal quotation omitted).
Moreover, where an easement  is implied by necessity, its scope "must
reflect the necessity  which justifies the easement's existence." 7
Thompson on  Real Property 466 (1994); see Hudson v. American Oil Co.,
 152 F. Supp. 757, 765 (E.D. Va. 1957) (stating that "the 




__________

n 9 Cf. Cartensen v. Chrisland Corp., 442 S.E.2d 660, 663 (Va. 1994) 
(recognizing that implied easement can be established for one land 
owner over property of another originating from common grantor);  Keen
v. Paragon Jewel Coal Co., 122 S.E.2d 543, 546, 547 (Va. 1961) 
(finding implied easement for lessee over land owned by entity that 
granted fee to lessee's landlord).


circumstances for which the implication arises, are to be  looked to in
order to ascertain the scope and extent of the  easement") (internal
citation omitted). Since "there is no  express agreement, courts will
be careful in interpreting how  far the use of such an easement may
go." 7 Thompson on  Real Property 466.


We are unable to see why the power to expel peaceful  organizers from
an adjacent sidewalk is reasonably necessary  for the use of leased
property. To the contrary, both the  courts and the Board itself have
repeatedly rejected the  notion that easements of access entitle
employers to exclude  union representatives from adjacent common
areas. See, e.g.,  O'Neil's Markets v. United Food and Commercial
Workers  Union, 95 F.3d 733, 739 (8th Cir. 1996) (holding that under 
Missouri law, neither a "non-exclusive easement of ingress,  egress,
and parking," nor "the exercise of control over the  sidewalk and
parking areas by repairing and maintaining the  property," authorize
employer to exclude organizers from  sidewalk).10 We have unearthed no
Virginia case in which an  easement was implied, or the scope of an
easement defined,  by reference to anything other than the extent of
the need for  access.11 Indeed, even in Woll, the only case cited by




__________

n 10 See Weis Markets, 325 N.L.R.B. 871, 883-85 (1998) (holding  under
Pennsylvania law that employer's nonexclusive right to use  common
areas is insufficient to exclude union picketers from side- walk);
Food for Less, 318 N.L.R.B. 646, 649-50 (1995) (holding  under
Missouri law that employer failed to demonstrate that its 
"maintenance of the parking lot transformed the easement interest  set
forth in the lease into a more substantial property right  providing
the legitimate power to expel"), enforced in pertinent  part sub nom.,
O'Neil's Markets, 95 F.3d at 739; Johnson &  Hardin, 305 N.L.R.B. at
690, 694-95 (holding under Ohio law that  possessor of access easement
cannot expel organizers unless they  interfere with ingress or
egress); Giant Food, 295 N.L.R.B. 330,  332 (1989) (same as Weis


11 See, e.g., Carter v. County of Hanover, 496 S.E.2d 42, 46 (Va. 
1998) ("[A]n easement by necessity will not be found if there is 
another way of access, although less convenient and which will 
involve some labor and expense to develop."); Russakoff, 400 


Fresh in support of its argument, the D.C. Court of Appeals  found that
the protesters who were expelled had "impeded  patients seeking to
enter and leave" the clinic. 570 A.2d at  820; see also O'Neil's
Markets, 95 F.3d at 739 (holding that  employer cannot exclude
handbillers unless they interfere  with the right of employer,
employees and customers to use  the easement property). But there is
nothing in the facts of  this case to support a claim that the right
to eject the  organizers was reasonably necessary to effectuate an
implied  easement of access. There was no allegation that the Union's 
representatives impeded access to the stores or that they  interfered
in any way with Farm Fresh's obligation to clean  and maintain the


Accordingly, we find that Farm Fresh lacked the requisite  property
interest to exclude the organizers from those side- walks not covered
by its leases. Although we reach this  conclusion without reference to
any burdens of proof, we note  that the applicable burdens further
confirm our analysis.  Under Indio, it is the employer that has the
"threshold  burden ... to establish that it had ... an interest which 
entitled it to exclude individuals from the property." 323  N.L.R.B.
at 1141. Lacking any language in its lease agree- ments or any case
law regarding an implied easement theory  that would support a right
to exclude the organizers, Farm  Fresh is unable to meet that burden.
Moreover, under  Virginia law, the burden is also on the advocate of
an implied  easement to establish "by clear and convincing evidence"
that  the easement is reasonably necessary for the enjoyment of its 
property--a determination that depends on "the facts and 
circumstances" of each case. Cartensen, 442 S.E.2d at 663- 64. Hence,
even if Virginia law would in some circumstances  support an implied
easement of the scope urged by Farm 




__________

n S.E.2d at 532-33 (finding easement for lakeside land owner without 
which it could not attain access to lake); Keen, 122 S.E.2d at 546 
("[T]he only way by which defendant can reach the public highway  with
coal mined from its leased land is ... over [plaintiff's] land."); 
see also Cartensen, 442 S.E.2d at 663-64 (holding that lack of 
vehicular access alone does not necessarily justify implication of 
easement for the enjoyment of a parcel of land).


Fresh, the company has failed to meet its burden of proof in  this case
because it has offered no evidence whatsoever to  support the need for
an easement of that scope at the four  stores at issue here.


Finally, we note that although the Board wrongly conclud- ed that Farm
Fresh had the requisite property interest based  solely on the
maintenance provisions of its leases, the lease of  one of the four
stores appears to grant Farm Fresh the lease  to the sidewalk
itself.12 The Board may, of course, consider  this point on remand.


III


We conclude that the NLRB's determination that Union  organizers were
lawfully ejected from the snack bar of one of  Farm Fresh's stores was
based upon a factual finding that is  unsupported by substantial
evidence. We further conclude  that the Board's determination that
organizers were lawfully  excluded from the sidewalks of four other
stores was based  on an erroneous reading of Virginia law.
Accordingly, we  grant the Union's petition for review and remand the
case for  further proceedings consistent with this opinion. In
addition,  because the employer has not challenged the Board's
findings  that it violated section 8(a)(1) in those respects reflected
in  the Decision and Order below, the Board's cross-petition for 
enforcement of its Order against the company is granted.




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n 12 See J.A. at 219 (Victory Boulevard) ("The demised premises  ...
include the building ... existing thereon and the side- walk....").
But see Farm Fresh, Inc., 326 N.L.R.B. No. 81, at 19  (ALJ Decision)
(finding inconsistent provisions and resolving ambi- guity against
Farm Fresh because of Indio burden).